Q: Our agency is going to arrange a tour for some affluent couples. Although we will be using a high-end tour operator, we would just as soon present the trip as our own tour and not reveal the identity or even the existence of the operator. We want to give the impression that we made all the arrangements, and we want to reduce the possibility the clients will bypass us on their next trip. However, the operator requires every participant to sign the operator's standard terms and conditions (T&C), which, of course, name the operator. Should we accede to the operator's requirement or find another operator? Does using the operator's T&C help us in any way? If we use them, do we also need to use our own disclaimer? If so, how do we avoid deluging the participants with all this seemingly duplicative paperwork?
A: If you don't disclose the name of the tour operator, the law says that your agency will be liable for the operator's acts or omissions. So you need to weigh the risk of liability against the benefits of passing yourself off as the operator.
Under the doctrine of "undisclosed principal," an agent stands in the shoes of its principal if the agent does not disclose the identity of the latter when the sale is made. For example, if the operator books a resort that does not honor the reservations because the operator failed to pay the resort, you would be on the hook for the operator's default.
To avoid that risk, you should name the operator in both the quote and the itinerary or invoice. If you do so, you don't need the operator's T&C, unless the operator requires them.
However, naming the operator and using the operator's T&C do not obviate the need to use your agency's own disclaimer. The operator's terms do not help your agency at all, as they are written to protect the operator, not anyone else in the sales chain.
In fact, since the operator's T&C disclaimers make a client's suit against the operator unlikely to succeed, you are more likely to get sued if you don't use your disclaimer, too. Your disclaimer should state that you are not responsible for the acts or omissions of the operator as well as the suppliers of travel services.
There are a couple of ways to manage the legal documents so that the client is not turned off and you lose the potential sale:
First, you or your attorney could combine your disclaimer with the operator's T&C in one document that says that you are the agent for the operator and that the latter is solely responsible for the tour arrangements. Such a project would probably be feasible only in cases where you use that operator regularly.
Second, you could put your agency's disclaimer on the invoice or itinerary, along with a prominent notice that "by using our services, you hereby agree to the terms and conditions at the bottom of this invoice/itinerary." If the couples all have Internet access, you can also place your disclaimer on your website and place a notice on the invoice/itinerary that says, "By using our services, you agree to the terms and conditions at www.abctravel.com/agreement.html, on behalf of yourself and all members of your traveling party."
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].